Delgado v. Arizona Department of Corrections

Plaintiff Anthony Delgado, who is confined in the Arizona State Prison Complex - Yuma in San Luis, Arizona, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 4). Plaintiff has also filed a document titled "This is a Motion to Amend" (Doc. 3). The Court will deny the Motion and will dismiss the Complaint with leave to amend.

I. Application to Proceed In Forma Pauperis and Filing Fee

Plaintiff's Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). The Court will assess an initial partial filing fee of $23.80. The remainder of the fee will be collected monthly in payments of 20% of the previous month's income credited to Plaintiff's trust account each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government agency to collect and forward the fees according to the statutory formula.

II. Statutory Screening of Prisoner Complaints

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

"[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief [is]... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 681.

But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must "continue to construe pro se filings liberally." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a pro se prisoner] must be held to less stringent standards than formal pleadings drafted by lawyers.'" Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) ( per curiam )).

If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) ( en banc ). Plaintiff's Complaint will be dismissed for failure to state a claim, but because it may possibly be amended to state a claim, the Court will dismiss it with leave to amend.

III. Complaint

In his two-count Complaint, Plaintiff names as Defendants the Arizona Department of Corrections ("ADOC"); Kieth Smith, a security operations administrator with ADOC; Marlene Coffy, a protective segregation officer with ADOC; and R. Sanders, the warden at the Dakota Unit of Arizona State Prison Complex - Yuma.

In Count One, Plaintiff alleges that he has repeatedly requested protective custody status due to threats and assaults made against him by other inmates. Rather than place Plaintiff in protective custody, however, Defendants have moved Plaintiff from one prison complex to another. Despite the moves, Plaintiff alleges that he is still in danger, and that Defendants' failure to place him in protective custody violates his right to be free from physical harm and threats. As a result, Plaintiff alleges that he has suffered at least one assault in which he was physically injured.

In Count Two, Plaintiff alleges that he filed a grievance related to Defendants' failure to place him in protective custody. According to Plaintiff, the evidence he presented as part of that grievance was lost by Defendant Sanders' staff. Plaintiff alleges that his family contacted Defendant Sanders regarding the loss of evidence, and that Plaintiff's Aunt even drove to Yuma and personally spoke with Defendant Sanders about the grievance and loss of evidence. Nevertheless, Plaintiff alleges that Defendant Sanders cancelled the grievance, and placed Plaintiff in a general population unit. When Plaintiff refused to go to the general population unit, he alleges that Defendant Sanders had her staff seize Plaintiff's personal property and revoke his privileges in retaliation for the complaints Plaintiff and his family had made. As a result, Plaintiff alleges that he has suffered mental anguish, emotional damages, and anxiety attacks.

For his alleged injuries, Plaintiff seeks monetary compensation and placement in protective custody.

IV. Failure to State a Claim

To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants (2) under color of state law (3) deprived him of federal rights, privileges or immunities and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm'n, 42 F.3d 1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury as a result of the conduct of a particular defendant and he must allege an affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled. Id.

A. Arizona Department of Corrections

The Arizona Department of Corrections is not a proper Defendant. Under the Eleventh Amendment to the Constitution of the United States, a state or state agency may not be sued in federal court without its consent. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Furthermore, "a state is not a person' for purposes of section 1983. Likewise arms of the State' such as the Arizona Department of Corrections are not persons' under section 1983." Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1327 (9th Cir. 1991) (citation omitted). Therefore, the Court will dismiss Defendant Arizona Department of Corrections.

B. Defendants Smith and Coffy

Despite naming Defendants Smith and Coffy in his Complaint, Plaintiff never once references them within his claims for relief or otherwise explains how they caused any of his alleged injuries. Accordingly, the Court will dismiss Defendants Smith and Coffy.

C. Defendant Sanders

As an initial matter, it is unclear from his Complaint whether Plaintiff is alleging an Eighth Amendment threat to safety claim, or a First Amendment retaliation claim (or both) against Defendant Sanders. If Plaintiff is alleging that Defendant Sanders has failed to ensure Plaintiff's safety, such a claim requires a sufficiently culpable state of mind by Defendant Sanders, known as "deliberate indifference." Farmer v. Brennan, 511 U.S. 825, 834 (1994). Deliberate indifference is a higher standard than negligence or lack of ordinary due care for the prisoner's safety. Id. at 835. To state a claim of deliberate indifference, plaintiffs must meet a two-part test. "First, the alleged constitutional deprivation must be, objectively, sufficiently serious"; and the "official's act or omission must result in the denial of the minimal civilized measure of life's necessities." Id. at 834 (internal quotations omitted). Second, the prison official must have a "sufficiently culpable state of mind, " i.e., he must act with "deliberate indifference to inmate health or safety." Id. (internal quotations omitted). In defining "deliberate indifference" in this context, the Supreme Court has imposed a subjective test: "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837 (emphasis added).

If he is raising an Eighth Amendment "deliberate indifference" claim, Plaintiff has failed to sufficiently allege that Defendant Sanders was both "aware of facts from which the inference could be drawn that a substantial right of serious harm exists, and [that Defendant Sanders] also [drew that] inference." Id. Plaintiff's conclusory allegations that his family spoke with Defendant Sanders and that Defendant Sanders subsequently denied Plaintiff's grievance are insufficient to demonstrate that Defendant Sanders actually inferred that denying Plaintiff's grievance and failing to place him in protective custody would result in a substantial risk of harm to Plaintiff. While Plaintiff alleges in Count One that he had been threatened (and even assaulted) by other inmates in the past, he does not sufficiently allege that Defendant Sanders was aware of those past threats and assaults, or was otherwise presented with any facts "from which the inference could be drawn that a substantial right of serious harm exists."

If Plaintiff is raising a First Amendment retaliation claim, he has still failed to sufficiently allege a cause of action. A viable claim of First Amendment retaliation contains five basic elements: (1) an assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights (or that the inmate suffered more than minimal harm) and (5) did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); see also Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997) (retaliation claims requires an inmate to show (1) that the prison official acted in retaliation for the exercise of a constitutionally protected right, and (2) that the action "advanced no legitimate penological interest"). The plaintiff has the burden of demonstrating that his exercise of his First Amendment rights was a substantial or motivating factor behind the defendants' conduct. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989).

Plaintiff has not sufficiently demonstrated that Defendant Sanders' actions chilled Plaintiff's exercise of his First Amendment rights, or that Plaintiff suffered more than minimal harm as a result of Defendant Sanders' actions. Plaintiff has not alleged, for instance, that he has been unable or unwilling to continue his grievances or other complaints in light of Defendant Sanders' actions. While Plaintiff has alleged that his property was seized and privileges revoked at Defendant Sanders' direction, he has not sufficiently alleged whether such deprivations are more than a minimal harm to him. For instance, Plaintiff has not provided any information about what property was seized or what privileges were revoked, and why those deprivations are more than minimally harmful.

Accordingly, regardless of whether Plaintiff is alleging an Eighth Amendment "deliberate indifference" claim or a First Amendment retaliation claim against Defendant Sanders, he has failed to sufficiently allege a claim for which relief could be granted, and Defendant Sanders will be dismissed. Because Plaintiff has failed to allege a claim for which relief could be granted against any named Defendant, his Complaint will be dismissed.

V. "Motion to Amend"

In his "Motion to Amend, " (Doc. 3) Plaintiff requests that the Court subpoena the Arizona Department of Corrections for Plaintiff's "805 protective custody files and medical files." The Court will, in its discretion, construe the motion as a motion for discovery. However, because the Court has dismissed Plaintiff's Complaint with leave to amend, and has not ordered service on any defendant, the motion is premature. Accordingly, the Court will deny the motion without prejudice.

VI. Leave to Amend

For the foregoing reasons, Plaintiff's Complaint will be dismissed for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the amended complaint and dismiss this action without further notice to Plaintiff.

If Plaintiff files an amended complaint, Plaintiff must write short, plain statements telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name of the Defendant who violated the right; (3) exactly what that Defendant did or failed to do; (4) how the action or inaction of that Defendant is connected to the violation of Plaintiff's constitutional right; and (5) what specific injury Plaintiff suffered because of that Defendant's conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

Plaintiff must repeat this process for each person he names as a Defendant. If Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for failure to state a claim. Conclusory allegations that a Defendant or group of Defendants has violated a constitutional right are not acceptable and will be dismissed.

Plaintiff must clearly designate on the face of the document that it is the "First Amended Complaint." The first amended complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original Complaint by reference. Plaintiff may include only one claim per count.

A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat an original complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original complaint and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).

VII. Warnings

A. Release

If released from custody, Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result in dismissal of this action.

B. Address Changes

If Plaintiff's address changes, Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.

C. Copies

Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Plaintiff.

D. Possible "Strike"

Because the Complaint has been dismissed for failure to state a claim, if Plaintiff fails to file an amended complaint correcting the deficiencies identified in this Order, the dismissal may count as a "strike" under the "3-strikes" provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 "if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g).

E. Possible Dismissal

If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court).

(2) As required by the accompanying Order to the appropriate government agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee of $23.80.

(3) The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a first amended complaint in compliance with this Order.

(4) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with prejudice that states that the dismissal may count as a "strike" under 28 U.S.C. § 1915(g).

(5) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.

(7) All future filings must be captioned: CV 14-0665-PHX-DGC (MHB); the Clerk of Court is directed to update the docket accordingly.[1]

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